Pandemic parenting: know your right as a working parent with kids

Pandemic parenting: Know your rights as a working parent with kids

Solarina Ho CTVNews.ca Writer Friday, May 29, 2020

TORONTO — The next three months will likely feel incredibly daunting for many parents and children already struggling with work, online classes and home life.

As businesses slowly begin reopening, the school closures, cancelled camps, and lack of childcare options in many provinces will be a massive barrier for parents, especially those whose employers may expect them to return to the office.

While it does not resolve the financial, emotional and mental stress caused by the extreme circumstances of the pandemic, working parents are protected to some extent by labour and human rights laws in Canada. Across the country, most provinces amended applicable labour laws in response to the unprecedented impact COVID-19 has had on workplaces, allowing employees to take extended leaves of absence, while protecting them from being fired or penalized.

Specifically, parents with no childcare options have the legal right to take a leave of absence from work and stay home, says Howard Levitt, an employment and labour lawyer at Levitt LLP. The laws on this are similar across Canada, he added.

“The question is, can they find care for their children? If the answer to that is ‘no’ then one parent has to stay at home,” he told CTVNews.ca in an interview.

“The employer cannot force them to go back to work and if they fire them for that, then not only will they lose a wrongful dismissal case, but a more serious human rights claim.”

Federally-regulated companies, such as banks, telecommunications firms and many transportation-related industries, are governed by the Canada Labour Code, which was amended to include job-protected leaves of absence for up to 16 weeks, while allowing pensions, benefits, and seniority to continue to accumulate during that leave. Most other companies fall under the Employment Standards laws within each province, many of which have been amended over the last two months.

Alberta, for example, changed its five-day unpaid leave allowance in its Employment Standards Regulation to “a period of indefinite leave” that is tied to guidance from the province’s chief medical officer of health, according to Ayla Akgungor, a partner and practice group leader at Field Law for the firm’s labour and employment group in Edmonton.

And even if a province has not amended its laws, like P.E.I., companies across the country still have human rights obligations to fulfill, which are independent of other legislation.

“Every jurisdiction protects family status,” Akgungor told CTVNews.ca. “That obligation stems from human rights legislation, which exists in all jurisdictions.”

DO EMPLOYERS HAVE RIGHTS?

For provinces like Alberta that have amended their Employment Standards laws, it is more difficult for them to deny an employee’s request for a leave of absence, Akgungor said.

“In the human rights analysis, there’s a little more give and take about coming to a solution that works for both sides … but in the Employment Standards side, there’s not a lot of room for the employer to say, ‘No, you can’t take the leave.'”

With most schools across Canada closed for the remainder of the school year and uncertainty over whether school will resume in the fall, a leave provision like the one in Alberta can be extremely challenging for employers.

“It’s tough for employers to manage a workforce that’s never there,” said Akgungor.

Under the human rights legislation, if the employer puts forward a reasonable proposal — such as offering a more flexible work schedule or providing options like a daycare at the office — the employee has a duty to cooperate with that and accept those accommodations, according to Akgungor and Levitt. A parent also won’t win a labour dispute by arguing that they feel uncomfortable with that arrangement, Levitt said.

Only one spouse in a two-parent household can ask their employer for leave due to child care needs. Employers have no obligation to pay or provide benefits during the absence, however, Levitt said. For many parents, going on leave is not ideal and can cause financial strain, but they can apply for the Canada Emergency Response Benefit (CERB) from the federal government, which provides $500 a week for up to 16 weeks.

Under the human rights laws, employees can request to work from home to accommodate family obligations if the nature of their job allows it. Companies cannot deny the request without proving that doing so would be an “undue hardship,” Levitt said, explaining that it sets a high burden for the employer.

If it’s simply a matter of employee preference, the employer is under no obligation to comply. Someone who works in an essential role, such as a healthcare provider, obviously would not qualify, but neither would an employee working at home who is never available for conference calls because of family obligations.

But the bar otherwise for what is considered hardship is quite high, he said.

“It’s a strong test. It’s got to be more than inconvenience or ideological preference,” said Levitt, but he added that a parent choosing to work from home must demonstrate that their home life will not disrupt their work.

“The only question is, can they work from home effectively?”

Aside from not qualifying for CERB, the same laws apply for families with elder care needs, said Levitt, explaining that these situations fall under the same human rights laws.

Employers who violate their employees’ rights risk facing a hefty penalty, he said, pointing to the case of Sharon Fair, who worked for the Hamilton-Wentworth District School Board. In that case, the Human Rights Tribunal of Ontario found that Fair had been subjected to employment-related discrimination and awarded her 10 years’ worth of lost wages amounting to some $420,000, plus $30,000 in other damages along with an order for her reinstatement, a decision that was later upheld by the Ontario court of appeals.

While Fair’s case was different in that it involved her personal health and not family child or elder care obligations, Levitt said it was an important employment human rights case, as it involved Fair being terminated by her employer even though there were alternate job options that would have accommodated her disability. The tribunal found that the Board discriminated against Fair because they did not give “any consideration to her ability to perform alternate employment opportunities.”

The case took about a decade to move through the courts.

There are risks as well for employers gearing up to bring workers back into the office and implementing pandemic safety measures and monitoring compliance.

“If you don’t get it right as an employer and the employees say to you, ‘This is dangerous and you’re negligent’ … and some employee comes in and dies, for example, or even gets their immune system permanently compromised, there could be a multi-million dollar lawsuit against that employer — it’s very serious,” Levitt warned.

Continuing to work from home with children or the loss of income from being on leave can be extremely challenging and stressful, but for better or worse, many parents may find relief in at least knowing their rights as employees are protected and that they cannot be fired if they have no choice but to stay home to care for their children.

https://www.ctvnews.ca/health/coronavirus/pandemic-parenting-know-your-rights-as-a-working-parent-with-kids-1.4961436